Could this political climate possibly give rise to an Equal Rights Amendment?

Arguments Don’t Last Forever

To be clear, the overwhelming support pollsters have charted for an ERA is probably less a message of support for feminist legislation than it is a revelation about the disappearance of age-old arguments against it. More specifically, women have lost – or are in the process of losing – the very “privileges” that were invoked to defeat the ERA in the 1970s and 1980s.

A quick history: In 1972, both houses of Congress approved the Equal Rights Amendment and sent it to the states for ratification. Within one year, 30 of the 38 states needed had ratified the ERA. Success seemed right around the corner.

Until it didn’t. Backlash against early feminist triumphs mobilized quickly. Interests as diverse as Coors Brewing Company, the Mormon Church and evangelical Christians opposed the ERA. Attorney and activist Phyllis Schlafly mobilized opponents into a STOP ERA movement. Schlafly cast the ERA as a false god of “rights” that would erode American women’s unparalleled “privileges.” More specifically and damningly, she warned that the ERA would:

deprive mothers of their children in cases of divorce

legalize “homosexual marriage”

eliminate women’s restrooms and other sex-segregated public facilities

draft women into military combat

This was fearmongering at its best – or worst. Many, if not most, American women in the 1970s found the idea of any of these possibilities – let alone all of them – terrifying. Schlafly used these fears to turn women against the ERA.

By 1982, the ERA was dead. At one point, it was just three states short of ratification. Later, four states made a legally questionable attempt to “rescind” their earlier vote to ratify before an extended deadline slipped by.

Fast forward to 2017. Not only has Phyllis Schlafly died, but the threats that helped defeat the ERA have been nearly completely realized – but they have been realized without, not because of, an ERA.

In cases of divorce, mothers no longer receive preference in determining custody. Indeed, in most states, divorced mothers lose partial custody of their children to joint custody arrangements. What inspired this new approach? Not equality concerns but “the best interest of the child” – a phrase that dates back to the 1989 United Nations Convention on the Rights of the Child. The U.S. has signed, but not ratified, this document. Even so, the language and orientation of “the best interest of the child” has now permeated American child custody law where it reduces, in most cases, a mother’s custody rights.

“Homosexual marriage” is also now the law of the land, thanks to the 2015 Supreme Court case, Obergefell v. Hodges. The court’s reasoning had nothing to do with sex equality but everything to do with individual rights, the importance of marriage to our “social order” and the best interests of children.

Women’s restrooms are also on their way out. While transgender activists fight in the nation’s legislatures and courts for access to women-only restrooms, fitting rooms and locker rooms, society has begun to adapt. Many public spaces – from restaurants and Target to museums and university campuses – now offer gender-neutral restrooms or explicitly invite patrons to choose a restroom based on their gender identity rather than their sex.

Finally, the big bugaboo of drafting women into the military is also on the horizon. Not only did individual candidates for the 2016 Republican nomination support requiring women to register for the Selective Service, but a majority of Republicans and Democrats in Congress also support it. Indeed, the U.S. Congress appointed a Military Commission on Military, National, and Public Service to study the issue in preparation for a 2018 or 2019 vote. Trump explicitly instructed the commission to examine the possibility of extending mandatory registration to women. Considerations of sex equality seem unlikely to be driving Republican interest in requiring women to join men in registering for the Selective Service. More likely the appeal lies in the possibilities a gender-neutral draft offers for expanding the military and mobilizing for war, should the draft ever come back into use.

This is a profoundly important moment in women’s history. The major arguments that defeated the ERA are no longer relevant. The “privileges” that inequality purportedly provided women are no more.

But do American women still need an ERA? In my opinion, yes. Today, threats to women’s equality are, in many ways, greater than ever as women confront ongoing and perhaps even increased sexual harassment and assaults on their bodies and rights. An ERA could establish a constitutional foundation for challenging discrimination that threatens women’s health, safety and very lives. Moreover, an ERA would require that courts evaluate sex discrimination using the same high level of scrutiny that they apply to race discrimination cases.

The good news is that this Trump moment could present a tipping point.

Just last spring, Nevada ratified the ERA. Belated ratification carries dubious legal weight, but it certainly indicates revived interest. States, including New York, are addressing the new threats to women’s rights by gearing up to pass their own ERAs. Several Democrats in Congress seem to agree that the time might be ripe for the ERA. Indeed, the unprecedented mobilization of women we saw in the worldwide women’s marches last January might yet culminate in a sea change for women’s equality, one no one could have predicted on Nov. 8, 2016. Americans might, finally, write into the U.S. Constitution the 170-year-old declaration by reformers at Seneca Falls that “all men and women are created equal.”

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Leigh Ann Wheeler is a professor of history and Her most recent book, "How Sex Became a Civil Liberty," shows how the American Civil Liberties Union profoundly changed the ways Americans think about, legislate and adjudicate sexuality.